Court Cases/Briefs

Dollar General v Choctaw – USSC Oral Argument
Dec. 7, 2015This past term the Supreme Court became convinced that the status of the Indians and Indian tribes is the source of this continuing extra-constitutional authority in the federal government. As the Supreme Court ruled in a series of cases, the use of this territorial war power has gone far beyond being an “Indian law” problem. This term the Supreme Court placed an actual limit on the territorial power as a matter of Constitutional law. The Justices were very careful not to punish the Indians or Indian tribes for this legal status they did not create.

Menominee-v-US USSC
January 25, 2016The Supreme Court in Menominee Tribe v. US changed the law so that contracts will no longer be read as a tribe would like it read. Contracts are now just plain contracts with no deference for Indians in how they will be applied and interpreted. Whether this will also apply to treaties which are by definition contracts was not determined.

Sturgeon v Frost – USSC
March 22, 2016The Court then issued the decisions in Nebraska v. Parker and Sturgeon v. Frost on the same day. In Nebraska, the Court upheld its precedent of Solem v. BartlettSolem v. Bartlett, 465 U.S. 463 (1984) that only Congress can diminish an Indian reservation but added that because the reservation was “declared open” under the public land laws by act of Congress that the tribe’s jurisdiction was altered within the opened area.

Nebraska v Parker – Oral Argument Transcript
Nebraska v Parker
March 22, 2016
In Nebraska, the Court upheld its precedent of Solem v. BartlettSolem v. Bartlett, 465 U.S. 463 (1984) that only Congress can diminish an Indian reservation but added that because the reservation was “declared open” under the public land laws by act of Congress that the tribe’s jurisdiction was altered within the opened area. It was not determined what this means. Under traditional public land law it means the opened area is subject primarily to state jurisdiction. This ruling puts Indian land issues back under the public land laws. Our federal public lands are the remaining territorial lands located in the Western States that have not been disposed of by Congress.

Zubik v. Burwell
May 16, 2016
The first decision that began applying Indian law as full constitutional law and not just as its own tangent was Zubik v. Burwell.This major decision remanded a set of healthcare cases to the lower courts to be reconsidered after the Supreme Court had required the parties to brief a question created by how the federal government was regulating healthcare. In the subsequent briefing the Supreme Court realized the controversy between the healthcare insurance companies and States did not really exist, it only happened because of the way the federal regulators were attempting to manipulate the system to avoid paying for services. (Obamacare has been far more expensive than originally projected.) Using its prior precedent in the Indian law case of Madison County v. Oneida Indian Nation 562 U.S., a case dismissed after being federally manipulated to avoid Supreme Court review, the Supreme Court remanded the healthcare cases to prevent the federal manipulation in trying to reduce the costs of Obamacare.

Army Corp of Engineers v Hawkes
May 31, 2016
This case was about how the US was trying to narrow the reading of the Administrative Procedures Act (APA) to prevent challenges oft their jurisdictional claims. The US tried to argue that merely changing jurisdiction from state to federal was not harm. In Army Corps of Engineers v. Hawkes Co. the Supreme Court rejected the narrow reading of the APA and made a rather expansive interpretation of federal court jurisdiction under the APA to review any government action that causes actual harm to a party. The Court held that changing jurisdiction after permits had been acquired from the State entities was actual harm. The “trust” argument made by the US was an implied very broad application of the reserved rights doctrine.

Puerto Rico-v-Sanchez Valle
June 9, 2016Applying the ruling in Puerto Rico v. Sanchez Valle, Congress does not have the authority to rewrite how the political authority of the IRA was applied in 1934 to only the Indian tribes then recognized and under federal jurisdiction. Congress does not have the authority to “fix” Carcieri.

US v Bryant – Supreme Court Ruling
June 13, 2016The Court rejected Mr. Bryant’s claim that his due process rights were violated by the amendments to the Violence Against Women Act (VAWA) by ruling that Mr. Bryant never challenged that his due process rights were limited by the Indian Civil Rights Act or in any of the prior convictions under that act.